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Waiting for Gaudet charting a course after Atlantic Sounding Co. v. Townsend.

In Waiting for Godot, the masterpiece play by Nobel Laureate Samuel Beckett, two friends wait expectantly for someone named Godot to arrive. The friends claim him as an acquaintance," but in fact they hardly know him, admitting that they would not recognize him were they to see him. After days of waiting in vain, they pledge to commit suicide the day after, unless of course Godot arrives. At the play's end, the audience never learns if Godot arrived or if the friends committed suicide. (2)

This narrative is strikingly similar to the saga of the homonymous Supreme Court case name Gaudet--a case that may or may not return from the vestiges of admiralty law jurisprudence. This article explores the potential of Gaudet's return," and, in doing so, it provides an up-to-date assessment of the state of the law of maritime personal injury and wrongful death remedies in the light of two co-existing, yet contradicting, Supreme Court precedents." Sea-Land Services, Inc. v. Gaudet (3) and Miles v. Apex Marine Corp. (4) The former case, Gaudet, is the outer limit reached by the Supreme Court in expanding the remedies available in maritime personal injury and wrongful death suits. (5) Miles, conversely, is synonymous with the Supreme Court's limitation, if not outright negation, of those remedies. (6) Strikingly, however, Miles distinguished Gaudet without overruling it, (7) and Gaudet, therefore, has remained in oblivion for a long time, while Miles has enjoyed an amazing expansion far beyond its own limited holding. (8)

In Part I, this article analyzes the many fallacies of Miles and examines myriad courts' expansive use of Miles in unrelated cases. Part II reviews Miles's foundations, many of which are premised on the "Vreeland gloss." Part III discusses what perhaps the major fault of Miles is: its treatment of Gaudet. Part IV chronicles case law after Gaudet and Miles, and argues that, while Miles has hoarded a crowd of followers, Gaudet has not been altogether abandoned. Parts V and VI suggest that the Miles doctrine may begin to fade; specifically, Part V proposes that the relatively recent Supreme Court case, Atlantic Sounding Co. v. Townsend, (9) signals Miles's fade, while Part VI contends that Miles's fade is reinforced by three state court cases that consistently embraced Townsend's reasoning and, thus, shed the ever-expanding Miles coat. (10) Finally, Part VII concludes that, like the narrative of Samuel Beckett's play, we may never know if Gaudet will finally return or if Miles will be overruled, or both. Nevertheless it argues that, in the wake of the Miles saga, the admiralty courts appear willing to reclaim their healthy role in making admiralty law free from mirages of nonexistent congressional mandates or occupation of admiralty waters.


The year 2011 was Judgment Day for Miles. (11) Three scholarly articles revisited, dissected, and diagnosed Miles's serious illnesses. The first article, written by Professor Thomas Galligan and published by the Louisiana Law Review in Spring 2011, addressed Miles in the wider context of the Deepwater Horizon oil spill disaster, highlighting its flaws and inconsistencies that resulted in injustice and insufficient deterrence of unnecessary risks. (12) The second article, published by the New York University Law Review in November 2011, criticized courts' reliance on Miles in denying punitive damages in Oil Pollution Act lawsuits. (13) The third article, written by Professor David Robertson and published in the Winter 2011 issue of the Saint Louis" University Law Journal, provided a refreshing analysis of Miles in the wider context of the relationship between admiralty courts and Congress. (14)

What is significant about these articles, however, is not simply their discussion of Miles in varying contexts; rather, it is the common thread that runs through them. They each addressed the ways in which courts have applied Miles in cases that are not only unrelated to Miles's narrow holding, but also distinct from the specific issues certified to the Miles Court, i.e., "whether the parent of a seaman who died from injuries may recover under general maritime law for loss of society, and whether a claim for the seaman's lost future earnings survives his death." (15) Miles answered those issues in the negative with the famous "[w]e sail in occupied waters" opinion authored by Justice O'Connor. (16) Nonetheless, numerous courts have applied the principle of careful attention and obedience to Congress in cases even more unrelated and far apart.

Professor Robertson's article discussed two seminal Supreme Court cases that misused the Miles approach (17)--Dooley v. Korean Air Lines Co. (18) and Norfolk Shipbuilding & Drydock Corp. v. Garris (19)--while Professor Galligan's article examined multiple United States Court of Appeals cases that extended Miles beyond its scope. (20) Galligan noted that the Fifth Circuit, for example, held that "loss of society damages were not recoverable in any wrongful death action involving a seaman, even when the claim was against a third party who was not the decedent seaman's employer or the owner of the vessel on which he or she was killed." (21) The Fifth Circuit thus used Miles in "claims (against third-party tortfeasors) that were not at issue in Miles and that are not implicated in either the Jones Act or DOHSA." (22) Moreover, the Eleventh Circuit "held that the father of a minor killed in a sailboat accident in Alabama's territorial waters could not recover loss of society damages under general maritime law." (23) Still more, the Eighth Circuit held that "general maritime law does not allow loss of consortium recovery for the spouse of a non-seafarer ... injured, as opposed to killed, on the high seas.... That is, the court extended DOHSA's no-loss-of-society rule to bar recovery for loss of consortium where no death had occurred." (24) Further, in Guevara v. Maritime Overseas Corp., (25) "the [Fifth Circuit] relied on Miles to deny recovery of punitive damages in a case involving the alleged arbitrary failure to pay maintenance and cure, which was not at issue in Miles." (26)

The expansive use of Miles is not limited to the aforementioned cases, but can be found in many more unrelated cases, including: seamen's injuries; (27) estate of watercraft operator against lessor of another watercraft; (28) claim of cruise passenger; (29) action by passenger, injured when employer against third parties; (31) action by estates of seamen who drowned on high seas against shipbuilder; (32) and, action in product liability. (33) Notably, this Iong list may go on. WestLaw's KeyCite of Miles at the date of this article shows that, out of 3,148 references, only forty-one of 671 cases accord Miles negative treatment. This confirms the resilience of the Miles doctrine, despite its faulty foundations: the waters allegedly occupied and the "Vreeland gloss." (34) Thus, a quick review of Miles's foundations is in order.


The Miles Court ruled that only pecuniary damages are available in a Jones Act wrongful death case by finding the same limitation in the Act's companion statute, the Federal Employees Liability Act ("FELA"). (35) The Court stated:
   [T]he language of the FELA wrongful death provision is essentially
   identical to that of Lord Campbell's ... [which] also did not
   limit explicitly the "damages" to be recovered, but that Act and
   the many state statutes that followed it consistently, had been
   interpreted as providing recovery only for pecuniary loss. (36)

Justice O'Connor, writing for the Court, then noted: "[t]he [Vreeland] Court so construed FELA." (37) This was, however, the Miles Court's interpretation of an assumed construction of the law by the Vreeland Court.

In Michigan Central Railroad v. Vreeland, (38) the decedent, a railroad employee, survived his injuries for several hours. (39) After the intestate's death, the intestate's personal representative brought an action, not for the employee, survived his injuries for several hours. (39) After the intestate's death, the intestate's personal representative brought an action, not for the injury suffered by his intestate, but for the loss suffered by the intestate's widow as a consequence of the intestate's wrongful death. (40) The railroad company argued that, because the injured employee survived his injuries for several hours, this operated to extinguish its liability for both the wrongful injury and ensuing death. (41) There was also an assignment in error on the jury instructions regarding the measure of damages. The lower court, after instructing the jury that it could not award damages for the grief and sorrow of the widow, or as a "balm to her feelings," instructed that it was proper to consider the husband and wife relationship to measure the worth of the husband's care and advice (had he survived) in dollars and cents. (42) The Vreeland Court found this was in error, as it "threw the door open to the widest speculation." (43) Indeed, the Vreeland Court declared "[t]he jury was no longer confined to a consideration of the financial benefits which might reasonably be expected from her husband in a pecuniary way." (44)

The issue in Vreeland was not so much whether non-pecuniary damages could be awarded under Lord Campbell's Act and its progeny; rather, it was the definition of "pecuniary damages," a definition totally absent in Lord Campbell's Act and all the statutes that followed. According to the Vreeland Court,
   A pecuniary loss ... must be one which can be measured by some
   standard, lt is a term employed judicially....

   ... [T]he word as judicially adopted is not so narrow as to exclude
   damages for the loss of services of the husband, wife, or child....
   which can only be supplied by the service of another for

Death by Wrongful Act. (47) Significantly, however, both of these authorities say more than what the Miles Court glossed from the Vreeland decision.

The Tilley court, for example, pointed out that its opinion did not supply a "contracted" interpretation of the term "pecuniary injuries"; instead, it found that the term had "a liberal scope [designedly] left for the action of the jury." (48) The court wrote:
   The [jury] charge is supposed to have been particularly
   objectionable because it set before the jury moral training and
   culture as one of the sources of pecuniary benefit, which the jury
   were [sic] at liberty to consider.... It is not essential to show
   that they necessarily result in direct pecuniary advantage; it is
   sufficient that they may do so; that they often do so; that it is
   possible and not improbable that such may be the result, and that,
   therefore, these items may be set forth and presented for the
   consideration and deliberation of the jury, to be disposed of as
   they shall deem to be just. (49)

Judge Hogeboom, writing for the Tilley court, then concluded: "I concede these are quite general and to some extent loose and indefinite elements to enter into a safe and judicious estimate of actual pecuniary damage, but I am unable to find in the statute a restriction which shall confine it within narrower limits." (50)

As for the Tiffany treatise, it goes even further than the Tilly court. While confirming that no damages were "allowed by way of solatium for the grief and wounded feelings of the beneficiaries, or to compensate for the mere loss of society or companionship," Tiffany did note that, in some states, juries could take into consideration loss of society or support. (51) One such state is California. In Beeson v. Green Mountain Gold Mining Co., for example, the California Supreme Court wrote:
   It is true, that in one sense, the value of social relations and of
   society cannot be measured by any pecuniary standard; and possibly
   the Legislature, in enacting [section] 377, Code of Civil
   Procedure, may not have intended to give relief in that sense ... but
   in another sense, it might be not only possible, but eminently
   fitting, that a loss from severing social relations, or from
   deprivation of society, might be measured or at least considered
   from a pecuniary standpoint. (52)

Beeson found approval in California (53) and even more in Florida. Indeed, in Florida Central & Peninsular Railroad v. Foxworth, the Florida Supreme Court wrote:
   By the common law no damages were recoverable for the death of a
   human being. We are, therefore, without precedents as to the
   measure of damages in cases of this character, other than those
   based upon the construction of statutes varying in their language.
   A great majority of the courts of this country have held that in
   actions of this character the loss of the society of the deceased
   cannot be considered in estimating damages. The basis for this
   array of precedents is the opinion of the English court, construing
   Lord Campbell's Act.... We have examined a multitude of these
   cases, and in none of them have we found any reason given for
   disallowing this element. (54)

The court further added:
   The right of a husband to recover damages for being deprived of the
   society of his wife by reason of injuries inflicted by the
   negligence of another has been often recognized at common law,
   though not in cases involving death; and it has never been
   considered that the damages on this account were either
   speculative, fanciful, or liable to bankrupt a defendant. (55)

The Tiffany treatise also cites several state statutes that allowed for solace, comfort, and mental anguish, such as in West Virginia, South Carolina, and Virginia. (56) Particularly interesting is a Virginia statute allowing damages "by way of solace and comfort for the sorrow, suffering, and mental anguish occasioned by the death." (57) The Beeson case contains a citation to Virginia cases holding in conformity. (58)

This brief excursus, coming from Vreeland itself, shows that the issue Of "patrimonial damages" was a matter of widespread and intense debate at the common law level, and that, even at the statutory level, some states opted differently than the vast majority of opinions. (59) If we grant Congress the benefit of assumed knowledge of the "Vreeland gloss," we may also assume that Congress was aware of the divergent treatment of damages, both at the statutory and common law levels, in states like California, Florida, Virginia, West Virginia, South Carolina, and possibly New York. (60)

Through the enactment of the FELA, Congress elected to remain silent on the issue of damages; yet, this hardly suggests that Congress intended to occupy the field of damages at all, and far less as preemptively as the Miles Court believed. (61) On the contrary, this points to a conclusion that Congress did not intend to meddle with the issue of damages, which was well in the hands and the making of the judiciary. (62) In sum, the waters of admiralty remedies for wrongful death actions were not occupied, and Vreeland, rather than place a gloss on the FELA, was a specimen of tort law in infancy; it was still wrestling with archaic issues of instantaneous death and not yet trained in attaching money value to "invaluables," which was a thing that the courts were more than able to do at the time of Miles.


This quick review cannot be closed without scrutiny of what probably is the major fault of Miles: the treatment of Sea-Land Services, Inc. v. Gaudet, (63) and the "Swan Song" of Justice Brennan's crusade for expansion of victims' remedies. (64) Justice Brennan's call to supplement the Death on the High Seas Act ("DOHSA") remedies with state remedies failed in Mobil Oil Corp. v. Higginbotham, (65) as well as his further call to use Louisiana law to supplement the Outer Continental Shelf Lands Act ("OCSLA") and DOHSA in Offshore Logistics, Inc. v. Tallentire. (66) These failures come with little surprise, as Justice Brennan's attempts, if successful, would have made two federal statutes meaningless. However, Justice Brennan finally succeeded in Gaudet. (67)

In Gaudet, the issue was the nature of remedies available, to wrongful death plaintiffs in a Moragne (68) cause of action for wrongful death, under general maritime law. (69) Justice Brennan, writing for the Court, held that recovery for loss of support, services, and society was available to Moragne plaintiffs, in harmony with the law of the majority of the states that permitted wrongful death actions, (70) because the decision was "compelled if [the Court is] to shape the remedy to comport with the humanitarian policy of the maritime law to show 'special solicitude' for those who are injured within its jurisdiction." (71)

The reasons that doomed Higginbotham and Tallentire could not cause Gaudet to fail, because Gaudet posed no threat to federal statutes and was founded on a clear progressive status of common law and on a sound humanitarian policy. (72) However, Gaudet was the total antithesis of Miles in the making. Miles and Gaudet could not coexist unless Miles overruled Gaudet, but the Miles Court did not dare to go that far.

Gaudet may not be simply overruled without trumping on the "special solicitude" towards the wards of the admiralty court. (73) The "occupied waters" and the corollary of uniformity supplied the escape, yet Gaudet had to disappear, and that is what Miles attempted to do with a magic trick: distinguish Gaudet. (74) In the words of Miles, Gaudet, "which allowed recovery for loss of society in a general maritime wrongful death action, applies only in territorial waters and only to longshoremen." (75) But this is not quite so. As Professor Robert Force pointed out:
   Gaudet expressly authorized recovery of damages for loss of
   society, and as we know, the Supreme Court has not expressly
   overruled Gaudet. Gaudet involved a suit brought under general
   maritime law to recover damages for the death of a Sieracki seaman.
   It is important to remember that Gaudet expanded remedies for
   maritime personal injuries under general maritime law by allowing
   recovery for loss of society. Nothing in the Gaudet decision
   indicates that the Court was fashioning rules of damages specially
   tailored to Sieracki seamen. Previously, in Moragne, the Court had
   created a general maritime law remedy for deaths occurring in
   navigable waters. Gaudet simply defined damages recoverable in such
   cases. (76)

Taking the analysis of Professor Force to its logical conclusion, Gaudet was not only not overruled, but also not even distinguishable, save for the fact that the 1972 Amendment to the Longshore and Harbor Workers' Compensation Act has taken away the unseaworthiness cause of action from longshoremen. (77) Since Gaudet does not apply to longshoremen alone, Gaudet is still good law for true seamen and, as explained below, for everybody else not directly covered by statutes. (78)

The situation today is the paradoxical coexistence of two Supreme Court cases incompatible with each other.


While Miles has hoarded crowds of followers, Gaudet has not been altogether abandoned. In Sutton v. Earles, (79) for example, "survivors and the representatives of five deceased victims of an allision between a pleasure boat and a Navy mooring buoy" brought an action against the United States under the Suits in Admiralty Act. (80) The Ninth Circuit, disagreeing with the extensive application of Miles, (81) refused to limit recoveries for the deaths of non-seamen and cited Gaudet with approval. (82) Sutton was thereafter cited with approval and followed by Kahumoku v. Titan Maritime, L.L.C. (83)

Further, in ln re Morehead Marine, (84) a "maritime action arose out of an alleged collision on the Ohio River between a tow pushed by the defendant's ship, the MV Ann Miller, and a pleasure craft occupied by three non-seamen, two of whom died." (85) The plaintiffs, who were survivors of the non-seaman decedents, sought pecuniary and non-pecuniary damages, including punitive damages, loss of society, and future earnings and support. (86) The court granted the requested damages, reasoning:
   We conclude that this case is governed by the reasoning if not the
   actual holding, of Sea-Land Services, Inc. v. Gaudet. We recognize
   that the Gaudet decision was specifically limited to its facts by
   Miles. Although its holding is not controlling, we do find that the
   underlying reasoning of the Gaudet opinion applies with the same
   force to the case at bar as it did to the facts of the Gaudet case
   itself. (87)

The court added:
   In this case the decedents, like longshoremen at the time the
   Gaudet case was decided, are not protected or governed in any way
   by statute. Unlike in Miles, Higginbotham and Miller, Congress has
   not limited the type of recovery available here. Consequently, we
   hold that under general maritime law, as there exists no statutory
   provision to the contrary, the Plaintiffs in this case are entitled
   to non-pecuniary damages, including loss of society, lost future
   income and punitive damages. (88)

Likewise, in Emery v. Rock Island Boatworks, Inc., (89) a case brought by the husband of a passenger who sustained injuries on a casino boat, the United States District Court for the Central District of Illinois stated, "the Supreme Court in Miles did not reach the issue of whether family members of a deceased Jones Act seaman could recover non-pecuniary losses in a wrongful death action under the general maritime law from a defendant who was not the decedent's employer." (90) The court then declared: "the concerns of uniformity addressed in Miles do not exist where the statutory law does not apply, and therefore, the principles of the Gaudet case, not the Miles case, control." (91)

Particularly interesting is In re Air Crash at Belle Harbor, (92) a multidistrict ("MDL") litigation that resulted from the crash of an Airbus aircraft at Belle Harbor, New York, on November 12, 2001. (93) The United States District Court for the Southern District of New York noted, "[a]ll two hundred sixty persons on board the aircraft died, five residents of Belle Harbor were killed, additional residents suffered injuries, and personal property was damaged." (94) The court rejected the defendants' argument "that Supreme Court case law has banned loss-of-society damages under the general maritime Moragne action for deaths of nonseafarers and ... the Supreme Court Miles decision forecloses recovery for nonpecuniary losses in a general maritime action." (95) The court ultimately allowed the airline passengers to recover loss of society damages, reasoning:
   Miles was distinguishing Gaudet as a territorial waters case not
   governed by the "preclusive" effect of DOHSA and as a nonseafarer
   case not governed by the preclusive effect of the Jones Act. At no
   time did Miles overrule Gaudet's interpretation of the elements of
   the Moragne cause of action for deaths of nonseafarers in
   territorial waters. Indeed, Gaudet is the only Supreme Court case
   which sets forth the elements of the general maritime Moragne
   action when no preclusive admiralty statute applies. (96)

The court added:

   Pursuant to Gaudet, reference to state laws and the humane
   character of general maritime law are the appropriate guideposts in
   shaping the Moragne remedies. It is therefore noteworthy that the
   majority of state wrongful death statutes allow nondependent
   parents to recover loss of society damages. (97)


Two recent cases suggest that the Miles doctrine may begin to fade: Exxon Shipping Co. v. Baker (98) and Atlantic Sounding Co. v. Townsend. (99) Both of these cases involve the subject of punitive damages in admiralty law, and both are divided by a common dissent, once again premised on Miles. Justice Stevens's dissent in Baker reads, "I believe that Congress, rather than this Court, should make the empirical judgments expressed in [the majority opinion]. While maritime law 'is judge-made law to a great extent,' it is also statutory law to a great extent; indeed, '[m]aritime tort law is now dominated by federal statute." (100) Justice Alito's dissent in Townsend reads, "[i]n Miles v. Apex Marine Corp., this Court provided a workable framework for analyzing the relief available on claims under general maritime law. Today, the Court abruptly changes course. I would apply the analytical framework adopted in Miles, and I therefore respectfully dissent." (101)

Rather than addressing the correctness of both dissents, (102) here it is interesting to note that, while the foundation of the dissents remained the same, the dissenters switched roles. In Townsend, Justice Stevens did not join the use of Miles that Justice Alito made in his dissent, although Justice Alito's dissent was based on the Miles doctrine, which Justice Stevens used in his own dissent in Baker. Justice Scalia, who concurred with the majority in Baker (and thus arguably was not sharing in Justice Stevens's dissent), instead joined the identically reasoned dissent by Justice Alito in Townsend.

The explanation for this apparent contradiction is that the dissenters were using Miles in different contexts, in different ways, and to different ends. The Baker dissent aimed at negating the limitation of the measure and amount that could be awarded for punitive damages, not at_negating the remedies themselves. Justice Stevens's dissent may be called a Miles in reverse; seen this way, Justice Stevens's dissent (freedom from limits on awards) runs against the grain of Miles (limits to remedies that can be awarded). In the view of Justice Stevens, the silence of Congress on limits of punitive damages, such as in the Trans-Alaska Pipeline Authorization Act, (103) implies a "congressional choice not to limit the availability of punitive damages under maritime law [that] should not be viewed as an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court." (104) The Baker majority quickly answered: "All in all, we see no clear indication of congressional intent to occupy the entire field of pollution remedies." (105) The majority went on to say:
   To the extent that Justice [Stevens] suggests that the very subject
   of remedies should be treated as congressional in light of the
   number of statutes dealing with remedies, we think modern-day
   maritime cases are to the contrary and support judicial action to
   modify a common law landscape largely of our own making. The
   character of maritime law as a mixture of statutes and judicial
   standards, "an amalgam of traditional common-law rules,
   modifications of those rules, and newly created rules," East River
   S.S. Corp. v. Transamerica Delaval inc., 476 U.S. 858, 865 (1986),
   accounts for the large part we have taken in working out the
   governing maritime tort principles. (106)

While in Baker there was no dispute over the applicability of punitive damages in the case before the Court (just a dispute on the magnitude of the award), Townsend posed a classic Miles/seaman question: was a seaman entitled to a certain remedy at all? The Court addressed Justice Alito's dissent as follows:
   [U]nlike the facts presented by Miles, the Jones Act does not
   address maintenance and cure or its remedy. It is therefore
   possible to adhere to the traditional understanding of maritime
   actions and remedies without abridging or violating the Jones Act;
   unlike wrongful-death actions, this traditional understanding is
   not a matter to which "Congress has spoken directly." Indeed, the
   Miles Court itself acknowledged that "[t]he Jones Act evinces no
   general hostility to recovery under maritime law," and noted that
   statutory remedy limitations "would not necessarily deter us, if
   recovery ... were more consistent with the general principles of
   maritime tort law." (107)

The above dissents deserve much more scrutiny than allowed by the scope and boundaries of this article. Here, it is relevant to note how twice in a row, and in a short period of time, the Court has answered a dyslectic use of Miles by returning to judicial action in a "common law landscape," (108) largely of the Court's own making and "faithful to ... 'general principles of maritime tort law.'" (109)


It appears that a new dynasty is about to evolve out of Townsend, which may eventually contain the indiscriminate use of Miles. (110) In fact, Townsend has been followed by a progeny of cases across the Nation, from the Ninth to the Eleventh Circuit. However, a qualified agreement with Townsend by the Ninth Circuit and a very recent, sharp disagreement in the Fifth Circuit show that the creative job of the courts is still alive and active.


In 2010, in Wagner v. Kona Blue Water Farms, L.L.C., (111) a diver filed maritime personal injury claims against his employer for injuries incurred within the scope of his employment, in four counts: a Jones Act negligence claim; general maritime law claim for unseaworthiness; general maritime law claim for maintenance and cure; and, a claim for the vessel owner's negligence, (112) Plaintiff asked for punitive damages under all counts. Defendant filed motion to dismiss the punitive damages demand in the Jones Act negligence claim, arguing that punitive damages are not recoverable as a matter of law under the Jones Act. In opposition, Plaintiff argued that Townsend permits punitive damages on his Jones Act claim.

The United States District Court for the District of Hawaii conducted a thorough analysis of Townsend and held that punitive damages are available under general maritime law for claims of unseaworthiness and vessel owner's negligence. (113) The Kona court, however, denied punitive damages in the Jones Act claim, reaffirming the validity of Miles in the Jones Act context. Specifically, the Kona court noted that Townsend did not in fact address the recovery of damages in Jones Act claims at all. (114) Instead, the Kona court held that Townsend did not eliminate the Miles exclusion of non-pecuniary damages in Jones Act claims and that "Townsend did not wholesale permit the recovery of punitive damages in maritime actions." (115) The Kona court held that punitive damages are non-pecuniary and, therefore, granted the motion to dismiss the punitive damages claim under the Jones Act. (116)


In August 2011, the United States District Court for the Western District of Washington decided Barrette v. Jubilee Fisheries, Inc. (117) In that case, a seaman employed as a deckhand on a fishing vessel sued his employer for personal injuries suffered from prolonged exposure to unsafe levels of Freon. (118) The seaman sought damages under the Jones Act and general maritime law. His wife also asserted a claim for loss of consortium. (119) The employer filed a motion to dismiss on the basis that "loss of consortium is not a cognizable claim for suits brought under the Jones Act or the general maritime law." (120)

The court, doing a thorough review of Townsend and rejecting the use of Miles, held that Miles was not dispositive and that Townsend was binding on the reasoning of the court. (121) The court further noted that the "application of the analytical framework of Townsend is necessary to determine if recovery for loss of consortium remains available in a general maritime action. (122) The court then stated that the facts of Miles were inapplicable because "Miles only addressed the remedies available in a general maritime wrongful death action created by the Supreme Court, and did not address the claim of unseaworthiness nor the remedies available." (123) The court concluded, "Townsend limited the application of Miles, and ha[s] ... reined in the 'broad reading of Miles previously espoused by the lower federal courts." (124)


On March 5, 2012, in Complaint of Osage Marine Services, Inc., (125) before the United States District Court for the Eastern District of Missouri, Plaintiff in a limitation action argued "that the general maritime law does not permit the recovery of punitive damages for claims based on the doctrine of unseaworthiness. In support of this argument, [P]laintiff point[ed] to the United States Supreme Court's decision in Miles." (126) Plaintiff argued the "Court's reasoning in Miles applies to the recovery of punitive damages in unseaworthiness claims .. [and] punitive damages are not available in unseaworthiness actions because non-pecuniary damages are not recoverable under the Jones Act, and therefore, it would be inconsistent to award such damages under general maritime law." (127) Following Townsend, the Missouri court disagreed and held that punitive damages are available under general maritime law for unseaworthiness claims. (128)


On July 5, 2012, in Gonzalez v. Maersk Line, (129) the United States District Court for the District of Puerto Rico, citing to and following Townsend, went on to decide whether or not a shipowner's conduct, resulting in disregard to pay maintenance and cure, might support a punitive damages award. The court found that the shipowner's conduct was in fact arbitrary, capricious, wanton, willful, and in bad faith. As such, the defendant-shipowner's motion to dismiss was denied.


On August 23, 2011, in Lobegeiger v. Celebrity Cruises, Inc., (130) the United States District Court for the Southern District of Florida rejected the argument that the Townsend holding should be narrowed to maintenance and cure only. Instead, the Lobegeiger court read Townsend expansively. Townsend, the court said, announced the rule that punitive damages are available in maritime actions, citing to Justice Thomas who, writing for the majority, explained that "[t]he general rule that punitive damages were available at common law extended to claims arising under federal maritime law." (131)

On March 19, 2012, in Doe v. Royal Caribbean, (132) the Southern District of Florida, Miami Division, reversed a trend prevailing in the Southern District that, based upon Amtrack "'Sunset Limited," (133) precluded punitive damages in maritime actions for personal injury except upon a showing of intentional wrongdoing. Following Townsend, the Doe court held that punitive damages are available in a maritime personal injury action, as at common law, for "wanton, willful, or outrageous conduct." (134) Agreeing with Lobegeiger, (135) the court recognized that the broad reasoning employed by the majority of Townsend undermined the Eleventh Circuit's holding in Amtrak by reversing its assumptions about punitive damages. (136)


The Federal courts of Louisiana have addressed Townsend in different backgrounds and with interesting results. While the Eastern District has applied Townsend without questioning, the Western District has refused to extend Townsend beyond maintenance and cure, and it has not missed the opportunity to renew an act of faith in Miles.

On December 13, 2011, in Ryan Marine Services, Inc., v. Hudson Drydocks, Inc., the Western District of Louisiana was asked to award punitive damages in a breach of contract case. Finding that Townsend did not address contract disputes, the court held that punitive damages are not available in breach of contract case, unless the conduct that produced the breach is also a tort.

Subsequently, the Eastern District of Louisiana made a straightforward application of Townsend to a case of maintenance and cure, but the Western District refused to apply Townsend to a Jones Act case.

On May 16, 2012, in McBride v. Estis Well Service, L.L.C., (137) the Western District of Louisiana was asked to award punitive damages in a Jones Act case. At issue was

whether the remedy of punitive damages is legally cognizable under the Jones Act and/or general maritime law in the context of a wrongful death/survival action, or a personal injury action, for seamen who were killed or injured in Louisiana territorial waters after the decision of Atlantic Sounding Co., Inc. v. Townsend. (138)

The McBride court denied punitive damages under the Jones Act, stating:
   Since Miles, the courts of this circuit have consistently followed
   the rule that punitive damages are non-pecuniary in nature and,
   therefore, they are not recoverable under the Jones Act. Townsend
   does not create a new rule abrogating those cases or the
   proposition that punitive damages are non-pecuniary and, therefore,
   not recoverable under the Jones Act. Therefore, the Court grants
   the motion to dismiss as it applies to the plaintiffs' claims for
   punitive damages under the Jones Act, whether arising out of
   wrongful death or personal injury. (139)

The McBride court then turned to answer the question whether punitive damages are a remedy available to seamen under the general maritime law for causes of action other than maintenance and cure, and answered in the negative. "Townsend," the court said, "did not abrogate Miles." (140)

Soon thereafter, on August 3, 2012, in Great Lakes Dredge and Dock Co. v. Martin, (141) the Western District of Louisiana, citing Townsend without more, engaged in a factual analysis, finding that the elements of a punitive damages award were missing in the case of maintenance and cure before the court.

A different voice came, however, from a Louisiana State court sitting in a maritime case. In January 2009, one year after Baker but pre-Townsend, in Trinh ex rel. Tran v. Dufrene Boats, Inc., (142) the widow of a self-employed commercial crab fisherman sought recovery under general maritime law and Louisiana wrongful death and survival laws for the death of her husband, killed in Louisiana territorial waters when a barge pushed by a tug boat struck his crab boat. (143) The Louisiana First Circuit Court of Appeal affirmed the trial court's award of pecuniary and non-pecuniary damages to the widow, citing CEH, Inc. v. F/V Seafarer for support. (144) The court stated:
   Miles does not mandate a uniform result for every maritime action
   and [the CEH court] was hesitant to ascribe to the Supreme Court a
   holding that goes well beyond any issue discussed there, In the
   absence of any relevant legislation, the CEH court concluded that
   the uniformity principle enunciated in Miles was inapplicable.


By simple logic, when two rules of the same rank are incompatible with each other, one must be abolished. If the preceding analysis is correct, either Miles or Gaudet should be overruled, but which one? Should it be the one that has been around for so long that it begins to fade, or the one that has been kept for so long in a metaphoric freezer that we may not be sure if it is still metaphorically edible? Indeed, for as much as Miles may be questionable in the world of the law reviews, (146) its limited holding may be good or even needed in the practical world. The shipping and insurance industries have lived and relied upon Miles's limitations of remedies for so long that to take Miles away may have serious repercussions in practical life.

On the other end, to restore Gaudet as a valid case, one that was never overruled, would require either another Miles-like operation (hearing and obeying a different voice of Congress) or a solemn pronouncement of the humanitarian values that Gaudet pushed to outer limits. The voice of Congress is dissonant: the House unanimously passed a bill that explicitly abolished Miles, but the bill (and its companions) is resting in peace in the Senate Committee's chambers. (147) Statements of solemn policies of great momentum require a delicate balancing act that may be too much to ask Congress and the Court to make.

But could it happen? History of admiralty law teaches that, in time, almost anything is possible. For the moment, let us be content if the courts shed that "hypnotic," some would say hallucinated, view of Miles and regain their institutional role of crafters of maritime law, finally stopping Judge Brown from turning in his grave. (148) The tide of judicial creativity seems to be flowing back, and the seas seem to be unoccupied. Miles preached to true seamen, and true seamen know that when the tide is flowing and the waters are free, it is time to sail.


(1.) Adjunct Professor of Admiralty Law, Admiralty Procedure and Marine Insurance, St. Thomas University School of Law, Miami, Florida.

(2.) See SAMUEL BECKETT, WAITING FOR GODOT: A TRAGICOMEDY lN TWO ACTS act 1, available at for_Godot_Partl.html.

(3.) Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573 (1974), superseded by statute, Jones Act, Pub. L. No. 97-389, 41 Stat. 1007 (amended 2006).

(4.) Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

(5.) Gaudet, 414 U.S. at 583 91 (holding that in a general maritime wrongful death action a decedent's dependent may recover damages for services, loss of support, loss of society, and funeral expenses); see infra Part III.

(6.) Miles, 498 U.S. at 37 (holding that in a general maritime wrongful death action a decedent's non-dependent may not recover for loss of society, and moreover, that general maritime law does not permit recovery for a decedent's lost future earnings); see infra Part I.

(7.) See Miles, 498 U.S. at 31-33.

(8.) See infra Parts I, III.

(9.) Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561 (2009) (holding an injured seaman could seek punitive damages against his employer for the employer's willful disregard of maintenance and cure obligations as a matter of general maritime law).

(10.) See Barrette v. Jubilee Fisheries, Inc., No. C10-01206 MJP, 2011 WL 3516061, at *1, *7 (W.D. Wash. Aug. 11, 2011) (ruling that loss of consortium damages were available under general maritime law before the enactment of the Jones Act and, therefore, were not precluded by the Jones Act); Wagner v. Kona Blue Water Farms, L.L.C., No. 09-00600, 2010 WL 3566731, at *2455, *2467-68 (D. Haw. Sept. 13, 2010) (holding that punitive damages are unavailable for claims brought pursuant to the Jones Act, although such damages are available in general maritime claims); Trinh v. Dufrene Boats, Inc., 6 So. 3d 830, 844 (La. Ct. App. 2009) (holding neither federal legislation nor general maritime law precluded application of Louisiana's wrongful death statute to a maritime case).

(11.) Miles, 498 U.S. at 37. Miles was a landmark admiralty case not only for the limits it imposed on damages in maritime wrongful death cases, but also for the expansion courts have given to its reasoning. See id.

(12.) See Thomas C. Galligan, Jr., Death at Sea: A Sad Tale of Disaster, Injustice, and Unnecessary Risk, 71 LA. L. REV. 787, 816 (2011) (examining the Miles decision within the context of the Deepwater Horizon oil rig disaster, and arguing that the denial of loss of society damages in maritime wrongful death cases was outdated and unjust).

(13.) Lauren E. Hume, Are We Sailing in Occupied Waters?: Rethinking the Availability of Punitive Damages" Under the Oil Pollution Act of 1990, 86 N.Y.U.L. REV. 1444, 1481 (2011) (criticizing the lower courts' reliance on the Miles uniformity principle, which ignored the Oil Pollution Act's maritime savings clause that allowed additional recovery through general maritime causes of action).

(14.) David W. Robertson, Our High Court of Admiralty and its Sometimes Peculiar Relationship with Congress, 55 ST. LOUIS U. L.J. 491,510 (2011) (arguing that a court should not "cloak its own determinations in the guise of imaginary congressional commands"). "The exhibit here is the much criticized 1990 decision in Miles v. Apex Marine Corp., where the Court purported to find two commands in the Jones Act... that are realistically impossible to attribute to Congress." Id.

(15.) Miles, 498 U.S. at21.

(16.) Id. at 36 ("We sail in occupied waters. Maritime tort law is now dominated by federal statute, and we are not free to expand remedies at will simply because it might work to the benefit of seamen and those dependent upon them.").

(17.) Robertson, supra note 14, at 514 16. Professor Robertson points out that both Dooley and Garris echoed the Miles" reasoning without even mentioning Miles. See id. Dooley concluded that there can be no survival damages under general maritime law because Congress had chosen not to authorize survival action in DOHSA. Id. at 515. Garris ruled that the Moragne cause of action for wrongful death is not limited to unseaworthiness, but also applies in negligence, using a "Miles role-reversal technique." Id. at 516.

(18.) Dooley v. Korean Air Lines Co., 524 U.S. 116 (1998).

(19.) Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811 (2001).

(20.) Galligan, supra note 12, at 8007 ("[S]ome lower courts have relied on Miles to limit recovery of nonpecuniary damages in martime cases that do not fall under those holdings.").

(21.) Id. at 806 (discussing Scarborough v. Clemco Indus., 391 F.3d 660 (5th Cir. 2004)).

(22.) Id.

(23.) Id. (discussing Tucker v. Fearn, 333 F.3d 1216 (11th Cir. 2003)).

(24.) Id. at 806-07 (discussing Doyle v. Graske, 579 F.3d 898 (8th Cir. 2009)).

(25.) Guevara v. Mar. Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).

(26.) Galligan, supra note 12, at 806-07.

(27.) See, e.g., Murray v. Anthony J. Bertucci Constr. Co., 958 F.2d 127 (5th Cir. 1992) (applying Miles's reasoning to deny an award for loss of society to an injured seaman's wife).

(28.) See, e.g., Cantore v. Blue Lagoon Water Sports, Inc., 799 F. Supp. 1151 (S.D. Fla. 1992) (noting Miles's reasoning was illustrative of how damages should be awarded, although it was not controlling).

(29.) See, e.g., Voillat v. Red & White Fleet, No. C03-3016 MHP, 2004 WL 547146 (N.D. Cal. 2004) (using Miles's reasoning to determine what damages plaintiffs may recover).

(31.) See, e.g., Rowan Companies, Inc. v. Houston Helicopters, Inc., No. 06-10755, 2007 WL 3046207 (E.D. La. 2007) (denying nonpecuniary damages based on the uniformity principle enunciated in Miles).

(32.) See, e.g., Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426 (9th Cir. 1994) (holding Miles is controlling and precludes the court from awarding the estates with lost future income of the deceased seamen).

(33.) See, e.g., Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084 (2d Cir. 1993) (denying recovery by nondependent parents under the maritime law based on broad holding of Miles).

(34.) See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (citing Michigan Cent. R.R.v. Vreeland, 227 U.S. 59, 69 71 (1913)); infra Part 11.

(35.) Miles, 498 U.S. at 32; see Federal Employees Liability Act, 45 U.S.C [section][section] 51 60 (2006).

(36.) Miles, 498 U.S. at 32.

(37.) Id.

(38.) Vreeland, 227 U.S. at 63. In Vreeland, a personal representative brought an action on behalf of a widow, under the Employee's Liability Act of 1908, to recover damages for the death of her husband, an employee of a railroad company. Id. The constitutionality of this act was questioned at the trial court level. Id. This constitutional challenge allowed for the action to reach the Supreme Court. Id.

(39.) Id. at 65.

(40.) Id.

(41.) Id. The Vreeland Court, obviously still struggling with primitive concepts of tort law, addressed the defendants' argument as follows: The view of counsel seems to be that the act declared a single liability and constituted a cause of action in behalf of the injured person if he survived, or, in case his death was instantaneous, a cause of action for the benefit of the specified dependent relatives surviving. This is a narrow interpretation of the act, and would operate to defeat all liability unless the injured person should survive long enough to conduct his action to a recovery. Id.

(42.) Id. at 72.

(43.) Vreeland, 227 U.S. at 72.

(44.) Id. at 73.

(47.) FRANCIS BUCHANAN TIFFANY, DEATH BY WRONGFUL ACT: A TREATISE ON THE LAW PECULIAR TO ACTIONS FOR INJURIES RESULTING IN DEATH (Vernon Law Book Co., 2d ed. 1913) (1893). This treatise is very instructive, even entertaining, and not as arcane to find as one may believe. See id.

(48.) Tilley, 29 N.Y. at 286.

(49.) Id. at 287.

(50.) Id. (emphasis added).

(51.) TIFFANY, supra note 47, at 324 27 (footnote omitted).

(52.) Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20, 38 (Cal. 1880) (emphasis added).

(53.) E.g., Dyas v. S. Pac. Co., 140 Cal. 296, 308 (Cal. 1903); Harrison v. Sutter St. R.R., 116 Cal. 156, 159 (Cal. 1897); Lange v. Schoettler, 115 Cal. 388, 391 (Cal. 1896).

(54.) Fla. Cent. & Peninsular R.R.v. Foxworth, 25 So. 338, 346 (Fla. 1899) (emphasis added). Foxworth is cited by Justice Brennan in Sea-LandServices, Inc. v. Gaudet. Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573,590 (1974).

(55.) Foxworth, 25 So. at 348 (citing multiple cases in support of this assertion).

(56.) TIFFANY, supra note 47, at 327.

(57.) Id. at 319.

(58.) Beeson v. Green Mountain Gold Mining Co., 57 Cal. 20, 25-26 (Cal. 1880) (citing Bait. & Ohio R.R.v. Wightman's Adm'r, 70 Va. (29 Gratt.) 431 (Va. 1877) and Matthews v. Warner's Adm'r, 70 Va. (29 Gratt.) 570 (Va. 1877)).

(59.) Michigan Cent. R.R.v. Vreeland, 227 U.S. 59, 65 68 (1913).

(60.) See id. (discussing the debate over patrimonial damages).

(61.) See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). The FELA became applicable to seamen recovery through the Jones Act. Id. The FELA simply states "employers shall be liable in 'damages' for the injury or death of one protected under the [Jones] Act," but it does not go into more detail. Id.

(62.) Id. at 36.

(63.) See id. at 31 (stating the Gaudet Court held there was "no need to consider the preclusive effect of [the] DOHSA for deaths on the high seas").

(64.) See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573,575 76 (1974). The issue before the Court required an extension consistent with the '"special solicitude' to the dependents" of those who have lost their lives in "hazardous and unpredictable sea voyages." Id. at 577. The expansion of victims' remedies not only covers recovery for loss of support, services, and society, but also covers damages for funeral expenses. Id. at 591.

(65.) Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625-26 (1978).

(66.) Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 228 (1986) (holding state court jurisdiction should be limited to the entertainment of maritime actions based on the DOHSA). Non-pecuniary damages under Louisiana law may be obtained under the DOHSA, not the OCSLA. Id. at 220.

(67.) Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 587 88. The expansion of recovery available to victims is not only consistent with the majority of state wrongful death statutes, but also compelled "to comport with the humanitarian policy of the maritime law." Id.

(68.) Id. at 574; see Moragne v. State Marine Lines, 398 U.S. 375,409 (1970). The Moragne Court held that "an action for wrongful death based on unseaworthiness is maintainable under federal maritime law;" thus, this case represents the only judge-made wrongful death action. Gaudet, 414 U.S. at 574.

(69.) Gaudet, 414 U.S. at 574.

(70.) Id. at 587 88.

(71.) Id. at 588.

(72.) Id. at 584 88. Compare Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624-26 (1978) (holding the measure of damages was governed by the DOHSA for an action for wrongful death), and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 207 (1986) (finding the application of Lousiana law was not required or permitted by the OCSLA or the DOHSA), with Gaudet, 414 U.S. at 588 (holding the remedy would be shaped to "comport with the humanitarian policy of the maritime law").

(73.) Gaudet, 414 U.S. at 577; Robert Force, The Curse of Miles v. Apex Marine Corp.: The Mischief of Seeking "Uniformity" and "Legislative Intent '" in Maritime Personal Injury Cases, 55 LA. L. REV. 745, 797 (1995).

(74.) Miles v. Apex Marine Corp., 498 U.S. 19, 30 n.1, 36 (1990) (explaining that, because Gaudet occurred in territorial waters, the 1972 amendments were inapplicable in this case).

(75.) Id. at 20.

(76.) Robert Force, The Legacy of Miles v. Apex Marine Corp., 30 TUL. MAR. L.J. 35, 48 (2006) (footnotes omitted).

(77.) Id.; see Force, supra note 73, at 749, 749 n.40 (explaining the effects of the 1972 amendments to the Longshore and Harbor Workers Compensation Act to martitime personal injury cases).

(78.) See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 233 (1986) (distinguishing Tallentire from Gaudet and defering to Congress's purpose regarding the DOHSA); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 623 24 (1978) (distinguishing Higginbotham from Gaudet and allowing the DOHSA to be the primary guide for a death remedy on the high seas). The limitation of Gaudet to territorial waters arguably remains good law under Higginbotham and Tallentire. See Tallentire, 477 U.S. at 233; Higginbotham, 436 U.S. at 623 24.

(79.) Sutton v. Earles, 26 F.3d 903 (9th Cir. 1994).

(80.) Id. at 906.

(81.) Id. at 916-17 (disagreeing with the extended application of Miles and refusing to limit recoveries for the death of non-seamen); cf. Wahlstrom v. Kawasaki Heavy Indus., Ltd., 4 F.3d 1084, 1091 94 (2d Cir. 1993) (limiting the class of beneficiaries of non-seamen that can recover for loss of society in a wrongful death case on the high seas). See supra Part 1, for a discussion and explanation of the Miles case.

(82.) Sutton, 26 F.3d at 917.

(83.) Kahumoku v. Titan Mar., L.L.C., 486 F. Supp. 2d 1144, 1152 (D. Haw. 2007). The court in Kahumoku noted:
   Sutton, decided post-Miles, recognizes the continuing validity of
   Sea-Land Services, Inc. v. Gaudet ... which allowed damages for
   loss of society for survivors of longshoremen. Gaudet and Sutton
   each allowed non-pecuniary damages for non-seamen injured in
   territorial waters. Sutton explains that in Gaudet, the Supreme
   Court 'recognized that is [sic] was permitting recovery for damages
   that were not compensable under the Death on the High Seas Act.'
   ... The Ninth Circuit explicitly rejected the positions adopted by
   the Second, Fifth and Sixth Circuits, which, in the interests of
   uniformity, prohibit non-pecuniary damages for non-seamen in
   territorial waters. Despite the anomaly between available remedies,
   Sutton concluded, '[w]e do not consider ourselves)tree to give such
   weight to the interest of uniformity, in light of Gaudet's explicit
   acknowledgment that it was creating a non-uniform category of
   damages in territorial waters.... Any lack of uniformity that is
   evidenced by our ruling inheres in the decision of the Supreme
   Court in Gaudet and in the actions of Congress in enacting the
   [Death on the High Seas Act] and the Jones Act.' ... Gaudet's
   continuing viability defeats Titan's argument that Miles requires
   uniformity of damages in territorial waters. Miles does not
   prohibit the recovery of punitive damages for injury to
   longshoremen in territorial waters.

Id. (emphasis added) (citation omitted).

(84.) In re Morehead Marine, 844 F. Supp. 1193 (S.D. Ohio 1994).

(85.) Id. at 1194.

(86.) Id.

(87.) Id. at 1196-97 (emphasis added) (citations omitted).

(88.) Id. at 1197.

(89.) Emery v. Rock Island Boatworks, Inc., 847 F. Supp. 114 (C.D. Ill. 1994).

(90.) Id. at 115, 117 (citing Sugden v. Puget Sound Tug & Barge Co., 796 F. Supp. 455, 457 (W.D. Wash. 1992)).

(91.) Id. at 117 (citing Sugden, 796 F. Supp. at 457).

(92.) In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, No. MDL 1448(RWS), 2006 WL 1288298, at *1 (S.D.N.Y. May 9, 2006).

(93.) Id. At *1.

(94.) Id.

(95.) Id. at "19 21 (footnote omitted).

(96.) Id. at *20 (footnote omitted).

(97.) Id. at "21.

(98.) Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).

(99.) Atl. Sounding Co. v. Townsend, 129 S. Ct. 2561 (2009).

(100.) Baker, 554 U.S. at 516 (Stevens, J., dissenting) (alteration in original) (citation omitted).

(101.) Townsend, 129 S. Ct. at 2575 (Alito, J., dissenting) (citation omitted).

(102.) See David W. Robertson, Punitive Damages" in U.S. Maritime Law." Miles, Baker, and Townsend, 70 LA. L. REV. 463,466 69 (2010). Professor Robertson stated:
   The linchpin of the modern movement against maritime punitive
   damages has been the courts of appeals decisions using Miles as a
   basis for denying punitive damages to seamen. The driving force
   behind these cases was not anything the Miles Court held or even
   said but was simply a pronounced judicial disapproval of the
   punitive damages remedy. But the "logic and analytical framework"
   of Miles that the courts seized upon as their doctrinal tool has
   been so often relied upon that the entailed chain of reasoning
   should be set forth.

   In an impressive three-step tour de force, several courts of
   appeals expanded the holding in Miles--that deceased seamen's
   families cannot recover compensatory damages for loss of society in
   actions for Jones Act negligence or unseaworthiness--into a broad
   rule that punitive damages are wholly unavailable in all litigation
   involving illness, injury, or death of seamen. In the first step,
   the courts seized upon the Vreeland and Miles characterization of
   loss-of-society damages as "non-pecuniary" as a basis for asserting
   that no FELA or Jones Act plaintiff can recover any form of
   non-pecuniary damages. Second, they read Miles" to mean that
   categories of damages unavailable to Jones Act plaintiffs are also
   unavailable to plaintiffs in the related general maritime actions
   for unseaworthiness and maintenance and cure. Third, they simply
   pronounced in ipse dixit fashion that "punitive damages ... are ...
   rightfully classified as non-pecuniary."

Id. at 46748 (alteration in original) (footnotes omitted). Robertson further explained why the "[r]evisionist [v]ersion of Miles" is faulty, Id at 473 75.

(103.) See 43 U.S.C. [section] 1653 (2006).

(104.) Baker, 554 U.S. at 519 (Stevens, J., dissenting).

(105.) Id. at 489 (quoting United States v. Texas, 507 U.S. 529, 534 (1993) ("In order to abrogate a common-law principle, the statute must 'speak directly' to the question addressed by the common law.")).

(106.) Id. at 509 n.21 (emphasis added) (citation omitted).

(107.) Townsend, 129 S. Ct. at 2572 73 (alteration in original) (citations omitted).

(108.) Baker, 554 U.S. at 509 n.21.

(109.) See Townsend, 129 S. Ct. at 2573.

(110.) See Robertson, supra note 14, at 517 ("[T]hose of us who think that the Miles role-reversal announcements were deeply unfortunate need to look for comfort where we can find it, and Townsend is at least a somewhat hopeful sign.").

(111.) Wagner v. Kona Blue Water Farms, LE.C, No. 09-00600, 2010 WL 3566730, at *1 (D. Haw. Sept. 13, 2010).

(112.) Id.

(113.) See id. at *4-8. The court granted the defendant's motion to dismiss the plaintiff's Jones Act claim for punitive damages, but concluded the "[p]laintiffs plea for punitive damages pursuant to Counts II (unseaworthiness) and IV (vessel owner negligence) remains." Id. at *8.

(114.) Id. at 7.

(115.) Id.

(116.) Id. at8.

(117.) Barrette v. Jubilee Fisheries, Inc., No. C10-01206 MJP, 2011 WL 3516061, at *1 (W.D.

Wash. Aug. 11, 2011).

(118.) Id. at *1.

(119.) Id.

(120.) Id.

(121.) Id. at *6.

(122.) Id.

(123.) Barrette, No. C10- 01206 MJP, 2011 WL 3516061, at *5.

(124.) Id. at *4.

(125.) In re Complaint of Osage Marine Servs., Inc., No. 4:10-CV-1674, 2012 WL 709188 (E.D. Mo. 2012).

(126.) Id. at2 (citing Miles v. ApexMarine Corp., 498 U.S. 19 (1990)).

(127.) Id.

(128.) Id. at 3.

(129.) Gonzalez v. Maersk Line, No. 10-2078(PG), 2012 WL 2675230 (D. P.R. 2012).

(130.) Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV, 2011 WL 3703329 (S.D. Fla. 2011).

(131.) Aft. Sounding Co. v. Townsend, 129 S. Ct. 2561, 2567 (2009); Exxon Shipping Co. v. Baker, 554 U.S. 471, 514-15 (2008).

(132.) Doe v. Royal Caribbean, No. 11-23323-CIV, 2012 WL 920675 (S.D. Fla. 2012).

(133.) In re Amtrack "Sunset Limited" Train Crash in Bayou Canot, Alabama, on September 22, 1993, 121 F.3d 1421, 1429 (11th Cir. 1997).

(134.) Townsend, 129 S. Ct. at 2566.

(135.) Id.

(136.) Id.

(137.) McBride v. Estis Well Serv., L.L.C., No. 6:11-CV-0557, 2012 WL 1833938 (W.D. La. 2012).

(138.) Id. at 1.

(139.) Id. at 3.

(140.) Id. at 9.

(141.) Great Lakes Dredge & Dock Co. v. Martin, No. 11-0405, 2012 WL 3158870 (W.D. La. 2011).

(142.) Trinh ex rel. Tran v. Dufrene Boats, Inc., 6 So. 3d 830 (La. Ct. App. 2009).

(143.) Id. at 833.

(144.) Id. at 843-44 (citing CEH, Inc. v. F/V Seafarer, 70 F.3d 694, 700-02 (1st Cir. 1995)).

(145.) Id. at 843 (citation omitted) (citing CEH, Inc., 70 F.3d at 702).

(146.) See, e.g, id. at 520 (footnote omitted) ("[T]his Article provides citations to criticisms of Miles... and offers references to post-Miles Supreme Court decisions that might be used to work some kind of shrinkage on the Miles approach.").

(147.) See Attilio M. Costabel, One Hundred and Sixty Years of Solitude: Limitation of Liability Act and Fairness in Admiralty Acts, 42 J. MAR. L. & COM. 607 (2011), for a review of the bills that the Deepwater Horizon disaster generated in Congress.

(148.) See John R. Brown, Admiralty Judges: Flotsam on the Sea of Maritime Law?, 24 J. MAR. L. & COM. 249 (1993); see also Robertson, supra note 14, at 514 ("We need to try to figure out whether this reversal is going to be a lasting change if so, it is a true sea change in the spirit of that metaphor--or something like a temporary aberration."). See generally Gus A. Schill, Jr., John R. Brown (1910-1993)." The Judge Who Charted the Course, 25 HOUS. J. INT'I. L. 241,243 (2003) (paying tribute to Judge Brown, "a leader in formulating admiralty law"). Judge Brown wrote:

The decisions in Higginbotham and Miles represent a complete reversal of the roles of admiralty judges and Congress. Prior to these decisions, admiralty judges exercised their Constitutional duty to declare the admiralty and maritime law based on enlarged principles of justice combined with the customs and usages of the sea.... Seamen were considered to be wards of the admiralty court and were treated with special solicitude by admiralty judges.

In the past fifteen years the justices of the Supreme Court have abandoned their role as admiralty judges.

Brown, supra, at 283. The gone but not forgotten Judge Brown wrote one of the most negative and passionate critiques of Miles. See id. at 279 83 ("The decision of the Supreme Court to bar recovery of nonpecuniary damages in an unseaworthiness claim under the general maritime law. .. leads to the most strained preemption holding ever reached by an American admiralty judge.").
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